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2005 DIGILAW 350 (JHR)

O. MADHAVA RAO v. UNION OF INDIA

2005-05-05

ALTAMAS KABIR, R.K.MERATHIA

body2005
Judgment : ALTAMAS KABIR, R. K. MERATHIA, J. ( 1 ) THE writ petitioner had been initially appointed as Substitute Token Porter by the railway authorities and continued as such till the date of receipt of an order of removal from service dated September 12, 2001. The petitioner along with several other similarly placed employees thereafter moved the Ranchi circuit Bench of the Patna Bench of the Central administrative Tribunal challenging the orders of dismissal and prayed that the same be quashed and they be reinstated with full back wages and all consequential benefits. As far as the writ petitioner is concerned his application was numbered as O. A. No. 160/2002. Nine matters, including that of the writ petitioner, were heard and disposed of by a common judgment and order dated January 1, 2004. In the writ petitioners case it was observed by the learned Tribunal that from the materials on record it would appear that the entire case involving the writ petitioner revolved round the fact that the only witness, who had given a statement that the service certificates submitted by the applicant were fake and forged, was not available for cross- examination during enquiry proceedings. The other ground taken by the petitioners was that they had been discriminated against, inasmuch as while they had been removed from service, others similarly-placed had been allowed to continue in service. ( 2 ) ON the basis of the evidence as adduced, the learned Tribunal appears to have been of the view that the case as made out by the respondents was not without any element of doubt. The learned Tribunal observed that the conclusion drawn by the Enquiry Officer gave rise to the suspicion as to whether the entire premises of the case had been built on inappropriate and incomplete facts. The learned Tribunal further observed that there was no evidence of the fact as to whether the respondents had made any attempt to find out the veracity or otherwise of the service certificates of the applicants, including the writ petitioner herein, for the period in question. It was observed that instead of depending entirely on the statement of the sole witness, the respondents could have made other efforts to verify the genuineness of the said certificates. It was observed that instead of depending entirely on the statement of the sole witness, the respondents could have made other efforts to verify the genuineness of the said certificates. ( 3 ) KEEPING in view the said observations, the learned Tribunal remitted the matter to the respondents with a direction to see whether on application of their minds they could still make efforts to remove the grievances of the applicants that their cases had not been looked. into properly with regard to their claim of having served the PWI (Construction) Unit. ( 4 ) PURSUANT to the directions given by the learned Tribunal the matter appears to have been considered by the Divisional Railway manager, South Eastern Railway, chakradharpur, in his capacity as the disciplinary authority. Upon observing that during enquiry the writ petitioner was unable to answer certain question relating to the period during which he claims to have worked under pwi (Construction), the disciplinary authority once again took into consideration the statement made by Sri S. C. Ghosh. PWI (Construction) despite the fact that such evidence had been considered by the learned tribunal earlier and had been found to be insufficient. On the basis of the same the disciplinary authority imposed the punishment of "removal from service" but in doing so, held that the petitioner would be entitled to 50 per cent of the terminal benefit as admissible to him. ( 5 ) THE said order of the disciplinary authority was once again challenged by the writ petitioner before the Ranchi Bench of the central Administrative Tribunal by way of o. A. No. 271/2004. In the second round before the learned Tribunal it was urged on behalf of the writ petitioner that apart from what was already on record, no fresh material had been produced on behalf of the respondents before the disciplinary authority which could have prompted him to repeat the earlier stand leading to an order whereby the writ petitioner was removed from service. The learned tribunal however, took a different view relying on a decision of the Honble Supreme court in the case of R. Vishwanath Pilial v. State of Kerala AIR 2004 SC 1469 : 2004 (2)SCC 105 where an allegation had been made against the appellant that he had entered the service against a reserved post on the basis of a false caste certificate and after examination as the certificate was found to be false, the services of the appellant were terminated. Although, on the earlier occasion, the learned tribunal had considered the evidence of Sri. S. C. Ghosh and had found the same to be insufficient, this time (sic) the learned Tribunal relied on the same evidence to reach a conclusion that the certificate produced by the writ petitioner was forged. In effect, the tribunal appears to have over looked its earlier finding in respect of the evidence of Sri S. C. Ghosh. ( 6 ) BASING its conclusion on a reversal of its earlier finding the learned Tribunal was of the view that the punishment of termination from service awarded to the writ petitioner was not such as would shock the conscience of the tribunal and held accordingly that the petitioners case did not deserve any further consideration, having particular regard to the judgment of the Honble Supreme Court in the case of R. Vishwanath Pillai (supra ). ( 7 ) APPEARING in support of the writ petition, Ms. M. M. Pal pointed out that there was no change in the fact situation in between the decision rendered by the learned Tribunal initially on January 1, 2004 when the writ petitioners original application had been allowed and January 4, 2005 when his second application was dismissed. Ms. Pal submitted that in the absence of any new material the learned Tribunal was not justified in reversing its earlier finding on the basis of the same materials which were available before the learned Tribunal when the matters were heard on two different occasions. Ms. Pal urged that the decision of the Honble Supreme Court in the case of R. Vishwanath Pillai (supra) has no relevance to the facts at issue in the instant case. Ms. Pal urged that the decision of the Honble Supreme Court in the case of R. Vishwanath Pillai (supra) has no relevance to the facts at issue in the instant case. since the evidence in support of the case made out by the respondents regarding the genuineness of the certificates produced by the writ petitioner was found to be insufficient by the same learned Tribunal which subsequently reversed its earlier finding. Ms. Pal also contended that three of the other applicants before the learned Tribunal had moved the cuttack Bench of the Central Administrative tribunal by way of O. A. Nos. 648 and 649 of. 2001 and 1038/2002 which were disposed of on January 5, 2004 by the learned Tribunal on the basis of its earlier finding that the respondents had failed to prove that the documents produced by the applicants were forged and that the enquiry report was based on suspicion rather than on material proof. Ms. Pal urged that the impugned order of the learned Tribunal was wholly perverse and was liable to be set aside. ( 8 ) MR. Modi who appeared on behalf of the respondents, on the other hand, strenuously urged that the order of the learned Tribunal under challenge was fully justified and did not warrant any interference. ( 9 ) WHILE admitting on the one hand that no new evidence had been adduced in support of the claim that the certificate produced by the writ petitioner was forged. Mr. Modi referred to the order passed by the disciplinary authority and urged that from the same it would be evident that the writ petitioner had failed to answer certain queries relating to the period of his purported engagement, which was sufficient to corroborate the evidence of the sole witness. Sri S. C. Ghosh, the then PWI (Construction), notwithstanding the fact that sri Ghosh was not available for cross-examination and his evidence had earlier been discarded by the learned Tribunal. ( 10 ) MR. Modi contended that the learned tribunal had given certain clear findings regarding the genuineness of the certificates which had been produced by the writ petitioner and other similarly placed employees and on the face of such finding of fact the Court should be slow to interfere with the order of the learned tribunal. ( 10 ) MR. Modi contended that the learned tribunal had given certain clear findings regarding the genuineness of the certificates which had been produced by the writ petitioner and other similarly placed employees and on the face of such finding of fact the Court should be slow to interfere with the order of the learned tribunal. ( 11 ) HAVING considered the submissions, made on behalf of the respective parties, we are constrained to observe that in the absence of any fresh material, the learned Tribunal in disposing of O. A. No. 271/2002 appears to have ignored its earlier finding in connection with O. A. No. 160/2002. While in O. A. No. 160/2002 the evidence of Shri S. C. Ghosh, the then PWI (Construction) was held insufficient to prove the charge of forgery with regard to the certificate produced by the writ petitioner, on the basis of the same evidence the learned tribunal in its subsequent decision chose to hold the said certificate to be false and proceeding on the basis that the document was forged, applied the decision of the Honble supreme Court in the case of R. Vishwanath pillai (supra) in dismissing the writ petitioners application. When it had initially held that it strongly felt that the case had inherent infirmity which needed to be attended to. It was a finding of perversity In the subsequent Judgment that the case was not of "no evidence" and that after taking into consideration the judgment in R. Vishwanath Pillais (supra), the writ petitioners case did not deserve any further consideration. ( 12 ) WE are unable to accept the conclusion of the learned Tribunal under challenge in the present writ petition since in our view, there were no new materials which could have prevailed upon the Tribunal to change its earlier finding and take the decision based on the basis thereof. In our view, the impugned judgment of the learned Tribunal appears to be a case of complete non-application of mind or a complete failure of abiding by Judicial norms. Once a question had been determined and settled, the same question could not have been reversed on the same set of facts and evidence. In our view, the impugned judgment of the learned Tribunal appears to be a case of complete non-application of mind or a complete failure of abiding by Judicial norms. Once a question had been determined and settled, the same question could not have been reversed on the same set of facts and evidence. The learned Tribunal in its Circuit Bench at cuttack appears to have considered the matter correctly in allowing the original application filed by three other similarly placed employees and we have little hesitation in doing the same. We, therefore, allow the writ application and set aside the orders passed both by the learned tribunal and as also by the disciplinary authority dated January 24, 2005 and July 9, 2004 respectively and direct that the writ petitioner be reinstated in service with all back wages with immediate effect. ( 13 ) THE writ petition is disposed of with the aforesaid observations/ directions. There shall be no order as to costs. --- *** --- .